Ivey v. Railway Fuel Co.

• Decision Date: 07 February 1924
• Docket Number: 6 Div. 44.
• Citation: 211 Ala. 10,99 So. 177
• Parties: IVEY v. RAILWAY FUEL CO.
• Court: Alabama Supreme Court

99 So. 177

211 Ala. 10

IVEY v. RAILWAY FUEL CO.

6 Div. 44.

Supreme Court of Alabama

February 7, 1924

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by J. B. Ivey, as administrator of the estate of Joe Lucy deceased, against the Railway Fuel Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W. A Denson, of Birmingham, for appellant.

Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellee.

SOMERVILLE J.

Section 6 of the Child Labor Law (Gen. Acts 1919, pp. 867, 869) provides:

"No child under the age of sixteen years shall be employed, permitted, or suffered to work in any capacity: *** (10) In any tunnel or excavation."

Section 17 of the act makes any violation of the provisions of section 6 a misdemeanor.

The complaint clearly alleges a violation of the quoted provisions of the law-unquestionably a "wrongful act" within the meaning of that phrase as used in the Homicide Statute (Code, § 2486) giving a right of action to a personal representative "for the wrongful act, omission or negligence of any person," whereby "the death of his testator or intestate was caused." It is of course not necessary that a complaint showing death caused by a wrongful act of the defendant should allege that the action is brought under the Homicide Statute; nor is it necessary to allege that the act complained of was wrongful or unlawful when the act itself is specified, and is per se wrongful. Massey v. Pentecost, 206 Ala. 411, 90 So. 866.

There is no inconsistency in the allegation that defendant "permitted or suffered" plaintiff's intestate to work in an underground tunnel or excavation in its coal mine, and the further allegation that the intestate "was not an employé of the defendant." Obviously the intestate may have been the servant of an independent contractor, or he may have been the merely voluntary or casual assistant of some employé of defendant who had no authority to engage such an assistant. In neither case would the relation of employer and employé exist. Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33; Grissom v. A. & B. Air Line Ry., 152 Ala. 110, 44 So. 661, 13 L. R. A. (N. S.) 561, 126 Am. St. Rep. 20. Such a relation is of course the essential basis of the Workmen's Compensation Act, and the remedy thereby provided. 28 R. C. L. 760, § 55.

As to the necessity of showing a duty to the intestate, and a breach of that duty, the law itself imposes the duty and defines its...